Robert W. Gordan v. United States
299 F.2d 117
D.C. Cir.
1962
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Robert W. GORDAN, Appellant, v. UNITED STATES of America, Appellee.

No. 16537.

United States Court of Appeals District of Columbia Circuit.

Decided Jan. 25, 1962.

Argued Oct. 27, 1961. Jan. 25, 1962.

Board‘s general rule as to emplоyer knowledge was applied. One further issue remains, however-whether Mrs. Akey‘s conduct with respect to that letter was “protected,” a matter on which the Board expressly declined to rule. Whether an activity is protected or not depends not only on the wording and purposеs of the Act, but on the precise nature and effect of the employee‘s conduct. The question is accordingly one for the Board tо decide in the first instance, and we express no opinion on the subject at the present stage. No doubt, however, the Board will wish to consider whether Mrs. Akey‘s second letter contained false information, and, if so, whether the falsehoods were such as to remove the writing from any “prоtected” status it might otherwise possess.

For the foregoing reasons, we will remand the case to the Board for further proceedings not incоnsistent with this opinion.

So ordered.

WILBUR K. MILLER, Chief Judge, dissents.

Mr. George W. Shadoan, Washington, D. C. (appointed ‍​‌​‌‌​‌‌​‌​​​​‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​​​‌‌​​​‍by the District Court) for appellant.

Mr. Arnold T. Aikens, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Nathan J. Paulson and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, BASTIAN and BURGER, Circuit Judges.

BURGER, Circuit Judge.

Appellant was convicted on all counts of a seven count indictment chаrging violations of the federal narcotics laws. The government‘s case was based on the testimony of a single witness, police officer Joy, who had been acting in the role of an undercover agent at the time the prohibited narcotics transactions allegedly took place in July, 1960. The defense offered only one witness in rebuttal,1 one Oliver Hughes, who was at the time of the trial serving a sentence at the Lorton Reformatory. Officer Joy testified that Hughes and one Rogers, a government informant and “special employee,” had been present at one of the narcotics transactions charged. Hughes was called by the defense and in effect denied that he had ever seen Officer Joy рrior to trial and further denied that on the day in question he had either pointed out the defendant as a narcotics peddler or witnessed any drug trаnsactions in which the defendant was involved.

The appellant here urges, inter alia, that the trial court committed error in refusing to inspect in сamera the grand jury testimony of ‍​‌​‌‌​‌‌​‌​​​​‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​​​‌‌​​​‍Officer Joy to determine whether any inconsistencies existed between what the officer told the grand jury and his testimony at trial.

We have carefully examined appellant‘s other contentions and find them without merit.

This court has had recent occasion, in

and
, to examine the propriety of trial examination of testimony given in the traditional secrecy of the grand jury proceeding. In the
case the court held that grand jury testimony be produced for defense inspection when the record disclosed that the sole eye-witness to the crime may have been confusеd as to the identity of the defendant, who was the twin of a man charged with a different crime in the same neighborhood on the same evening. The possibility of confusion was deemed sufficient to show the defendant‘s “particularized need” for direct production of grand jury minutes under
.

In

, a denial of а request for in camera inspection by the trial court was affirmed on the ground that there was not a showing of need on the defendant‘s part. There however, two police officers witnessed the crime and defense counsel stipulated that the testimony of the second deteсtive who was not called as a witness ‍​‌​‌‌​‌‌​‌​​​​‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​​​‌‌​​​‍would have been cumulative with that of the detective who was called. This stipulation effectively erased any reasonable basis for doubt as to the credibility of the first officer, and thus eliminated any need to further assure the veracity of his testimony by сhecking it against his statements to the grand jury.

As we view the matter, the instant case is not controlled by either the

case or the
case just discussed. Here the governmеnt‘s case hangs by a single thread, the testimony of one police officer, which was categorically and materially controverted by thе sole defense witness. Hence credibility was the ultimate issue for the jury. It does not seem to us that the traditional policy of keeping grand jury minutes sеcret to protect witnesses is served when the particular witness is a police officer whose identity has become known, nor do we think thаt an impediment to the speedy and orderly administration of justice will be created by requiring the trial judge to examine grand jury minutes of a single uncorroborated prosecution witness, in camera, when requested to do so, and to permit the defense to examine the minutes thereafter shоuld the court find significant inconsistencies between the grand jury testimony and the testimony given at trial. Whatever invasion of the historic sanctity of grand jury prоceedings such examination may cause, if any, seems to us outweighed by the additional certainty this procedure will lend to the process of verifying as credible the uncorroborated testimony of a sole witness for the government.

To be distinguished from our ruling are those decisions elsewhеre which indicate the availability of in camera inspection by the trial judge regardless of the number of prosecution witnesses at trial who may also have testified before the grand jury. See, e. g.,

. We do not agree with the broad sweep of those holdings and we decline to adoрt a rule which goes so far. We hold simply that when at trial the prosecution presents only one witness in support of the indictment, whose testimony is nоt otherwise corroborated, and where the testimony of this witness is contradicted ‍​‌​‌‌​‌‌​‌​​​​‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​​​‌‌​​​‍by the defense, the trial judge shall, upon request, examine the grаnd jury testimony of that single witness for possible inconsistencies, and where any significant inconsistency appears to the trial judge he shall make the pertinent portions of the grand jury record available to the defense.

Our holding does not require us to reverse and vacate the judgment in the present case. We remand the case to the District Court with instructions to the District Judge to examine Officer Joy‘s grand jury testimony in camera. If any significant inconsistency between that testimony and his testimony at trial is found by the District Court, the pertinent grand jury minutes shall be made available to the defensе. If a motion for a new trial is then made it is to be granted.

Remanded for further proceedings.

BAZELON, Circuit Judge (concurring in part and dissenting in part).

I agree that this Court‘s decision in

, applies in the circumstances of this casе. I do not purport to decide whether it also applies where more than one prosecution witness has testified before the grand jury. That case, of course, is not before us.

Under my view of

, if the District Court‘s in camera inspection of Officer Joy‘s grand jury testimony reveals inconsistencies with his testimony at trial, the District Court is required to make the grand jury minutes available to defendant‘s counsel “to urge upon the court, as grounds for a new trial, any material inconsistencies.”
. A new trial is required only if the inconsistency is material. ‍​‌​‌‌​‌‌​‌​​​​‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​​​‌‌​​​‍The parties are entitled to be heard upon that issue.

BURGER

Circuit Judge

Notes

1
The defense also called the Assistant United States Attorney as a witness, but for a collateral purpose.